Supreme Court reserves judgment on Marc Nadon's eligibility

Court hears debate on technicalities of Marc Nadon's appointment, but not his merits as a judge

Justice Marc Nadon's appointment to the Supreme Court as the next justice from Quebec has been stalled by a legal challenge. The federal government's reference on the matter was heard Wednesday by the court, which reserved its decision. (Chris Wattie/Reuters)

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The Supreme Court of Canada heard arguments Wednesday about whether Justice Marc Nadon, a Quebec-born Federal Court judge, is qualified to represent Quebec on the top court's bench, and has reserved judgment until a later date.

As the top court undertook the delicate task of debating a potential colleague's fate, no one in the courtroom speculated about why the federal government chose to try to bend the rules about how judges on the highest court are chosen.

Both the seven judges who presided over the hearing, as well as the lawyers making the arguments, said several times the issue is not whether Nadon's appointment is "a good thing or a bad thing."

Instead, the debate was over whether Quebec, either by constitutional law or convention, must be represented in a different way on the top court than other provinces. It was also about whether the government can unilaterally amend the requirements for a Quebec Supreme Court appointment, as it tried to do as part of its budget implementation bill last year.

Much of the argument was over whether Nadon should have been a current member of the Quebec bar or an actual Quebec judge, rather than a Federal Court justice living in Ottawa who hasn't practised in Quebec for over two decades.

Nadon, who grew up in Quebec and attended law school in the province, was appointed to the Federal Court by Prime Minister Jean Chrétien in 1993.

Rocco Galati, the Toronto lawyer who launched a legal challenge to Nadon's appointment on technical grounds, told reporters, "His experience as a lawyer in the province of Quebec is 23 years old. That's two years more than my entire legal career."

Galati suggests government is 'stacking' the court

But Galati went further. "I don't shy from saying that this is a blatant attempt to stack the court. And if it's successful, it will diminish the currency of this court." Asked to explain, he said, "I think the government wants judges that are more friendly to their point of view."

The federal government hasn't fully explained why it nominated Nadon, especially since many in the legal community have claimed there are more qualified candidates currently sitting on the Quebec Court of Appeal.

One of the cases Nadon presided over was about the repatriation of Omar Khadr from Guantanamo Bay. The three-judge Federal Court of Appeal upheld a ruling that ordered the government to bring Khadr back to Canada, but Nadon wrote a dissenting opinion.

Nadon said, in his decision, "It is clear that Canada has decided not to seek Mr. Khadr’s repatriation at the present time. Why Canada has taken that position is, in my respectful view, not for us to criticize or inquire into.

"Whether Canada should seek Mr. Khadr’s repatriation at the present is a matter best left to the executive."

Nadon first appointed by Liberals

Françoise Boivin, the NDP's justice critic, doesn't agree that Nadon was selected because of the Khadr decision.

"First and foremost you have to remember that this guy was named by Liberals," she said. "I have a hard time labelling someone a Harper conservative when they've been named by other prime ministers."

She continued, "Of course, the government must have been happy with his decision or motive in the Khadr [ruling], but you don't base a whole nomination to the Supreme Court of Canada on that one decision."

Boivin thinks the government knew there might be a problem with Nadon's nomination, and should have foreseen someone might try to block his appointment.

"The one that is hurt the most after Mr. Nadon, because I wouldn't want to be in Mr. Nadon's shoes after today, it's also the Supreme Court of Canada as an ensemble, as part of our democratic system. That is not a fine day in the history of our democracy, let me tell you."

The Supreme Court on Wednesday reserved judgment about the legality of Nadon's appointment.

In the meantime, Nadon, who did not attend the hearing Wednesday, remains in limbo, and the top court is left with only eight judges and the possibility of tie decisions.

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